Employers may not retaliate against those who: file or threaten to file a charge, assist in an investigation, complain about alleged discrimination, refuse to obey an order believed to be discriminatory or request reasonable accommodation.
The EEOC guidelines for review of retaliation claims address the following issues:
- Charging parties include members of a protected class as well as current employees who are not members of the protected class, former employees and individuals "closely related to or associated with" the person who is being retaliated against.
- Any retaliatory treatment "can be challenged regardless of the level of harm" to the individual.
- Even threats and reprimands qualify as retaliation. In addition, post-employment actions based on a retaliatory motive that interfere with future job prospects can be actionable.
- Opposition to employment practices is protected if based on a reasonable and good faith belief of their illegality. "EEOC Guidance on Investigating, Analyzing Retaliation Claims," EEOC Compliance Manual, 5/26/98.
Employers should be aware of their considerable liability under the federal civil rights laws not only for discrimination, but also for retaliation against employees who assert these civil rights.
Source: D. Diane Hatch, a San Francisco HR consultant, and James E. Hall, an attorney with Barlow, Kobata & Denis (based in Los Angeles and Chicago).